Kumar Soni & Anr Vs. State of U.P. & Anr  Insc 352 (3 April 2007)
P.K. Balasubramanyan & B. Sudershan Reddy
CIVIL APPEAL NOs. 1763 OF 2007 (Arising out of SLP(c) Nos. 18747-18748 of
2005) B.SUDERSHAN REDDY,J.
On 31-3-1993 the Sub-Divisional Officer, Kotdwar accorded approval to allot
the land in question admeasuring Ac.0-053 hectare in Khasra No.1003 situated at
village Jhonk, District Pauri Garhwal (Uttaranchal) to one Mahanth Govind Das.
On the same day, the Sub-Divisional Officer executed a lease deed in favour of
the allottee for a period of thirty years from the date of execution of the
The said Mahanth Govind Das is stated to have applied for and obtained a
sanctioned plan for raising certain constructions from the Development
The appellants herein purchased the constructions raised/Malwa under the
registered sale deed dated 26-4- 1995 from the said Mahanth Govind Das. The
appellants claim to have purchased the land also, as is evident from their
pleadings and contentions raised in the writ petition.
Be it noted, the land admittedly belongs to Government.
The appellants, by their application dated 15-5-1995 requested the Collector to grant mutation in their favour, in which it is stated that they have
purchased the debris and not the land from Mahanth Govind Das. The Deputy
Collector, having considered the application so submitted by the appellants
found "the holder of grant Mahant Govind Das sold the debris of
residential building and the shops along with the possession through the
registered sale deed in favour of the applicants on 2-5-1995. In case the debris is removed due to violation of the grant, then there is possibility of starting
of unnecessary litigation and if Pakka houses are removed, then many legal
hurdles might arise, which are not benefit the State government. Therefore it
is not appear proper to dispossess them from the land. (sic)"
The Deputy Collector however, disposed of the application directing the
transfer of the land itself in the names of the appellants on payment of land
revenue at Rs.157.50 paise.
The District Magistrate, Kotdwar Garhwal vide show- cause notice issued on
5-4-1999 required the appellants herein to show-cause as to why the grant of
the land made in their favour by the Sub-Divisional Officer, Kotdwar should not
be rescinded. In the show-cause notice, it is alleged that the Sub-Divisional
Officer has unauthorisedly granted/allotted the land in favour of the
appellants. It is specifically alleged that the Sub-Divisional Officer is not
authorized to grant land, inasmuch as the authority to grant the Government
land for the residential purpose vests in the District Magistrate. The
appellants submitted their detailed explanation to the said show-cause notice,
inter alia, contending that the authority accorded grant only after lawful
enquiry and they have spent considerable amount in renovating the existing
building on the land and also made some new constructions in respect of which
no objections have been raised at any point of time. It was contended that the
proceedings initiated against them are not maintainable in law. It was also
contended that they have acquired the status of tenure holders. The District
Magistrate, having considered the explanation submitted by the appellants
clearly found that the Sub-Divisional Officer had no authority to allot the
land to Mahanth Govind Das in the year 1993. The Collector accordingly held
that the order of allotment and lease executed by Sub-Divisional Officer did not
confer any right, title and interest in the land in favour of Mahanth Govind
Das. The said Mahanth Govind Das sold the said land to the appellants without
any authority of law.
The District Magistrate/Collector also found that the Sub- Divisional Officer
abused his authority at every stage right from the commencement of grant of
land to Mahanth Govind Das till the transfer of the land to the appellants. The
order of transfer made in favour of the appellants by the Sub- Divisional
Officer has been accordingly quashed and appropriate directions have been
issued to make entries in the revenue records duly incorporating the name of
the Government as the owner of the land.
The appellants challenged the order passed by the District
Magistrate/Collector dated 10-5-1999 in Civil Misc.
Writ Petition No. 20708 of 1999. It was sought to be contended as if the
appellants have purchased the land itself from Mahanth Govind Das but appears
to have given up the same during the course of hearing of the writ petition. It
was asserted that the power to grant lease vests in the Assistant Collector,
previously known as Sub-Divisional Officer and therefore, it cannot be said
that the lease granted was without jurisdiction. The High Court found that the
appellants did not purchase the land but what they have purchased under the
registered sale deed was Malwa (debris of constructions). The Sub-Divisional
Officer, according to the High Court, could not have passed any order directing
transfer of the land in favour of the appellants based on the sale deed
executed by Mahanth Govind Das. In terms of G.O.150/1/185(24)-6010, dated 09-10-1987, the Sub- Divisional Officer/Deputy Collector had no authority to accord
approval of grant of land inasmuch as the authority stood vested only with the
Collector of the District to accord approval up to certain limit for
residential purpose. The High Court also found that the appellants' application
for transfer was not made under the provisions of the U.P.
Zamindari Abolition and Land Reforms Rules. The High Court further held that
no foundational facts have been pleaded by the appellants that the conditions
existed for securing allotment of land under the said provisions. The
appellants' claim does not fall under any of the categories in respect of which
an order of allotment could have been made under the provisions of the said
Rules. The High Court took the view that in any event the Collector of the
District is conferred with the power under Section 122(6) of the U.P.
Zamindari Abolition and Land Revenue Act to cancel any irregular allotment
made by the Assistant Collector in-charge of such division. The High Court held
the order of the Sub- Divisional Officer in allotting the land to Mahanth
Govind Das and thereafter directing the transfer of the land in the name of the
appellants is void and without jurisdiction.
These appeals are directed against the decision of the High Court,
dismissing the appellants' writ petition.
Sri Sudhir Chandra, learned Senior counsel for the appellants submitted that
the findings by the District Magistrate that the power of the Sub-Divisional
Officer in the matter of allotment of land has been withdrawn on 9-7-1992 is
absolutely baseless and in the absence of production of a copy of the
proceedings thereof it has to be presumed that the Sub-Divisional Officer was
competent to allot the land.
The learned Senior counsel further submitted that in the show cause notice
there was no mention about the withdrawal of the power conferred upon the
Sub-Divisional Officer and in such view of the matter the order of the Sub-
Divisional Officer could not have been set aside on the ground not mentioned in
the show cause notice. The order according to the learned counsel is in
violation of the principles of natural justice.
The learned counsel appearing on behalf of the State submitted that the
proceedings right from the allotment of land up to the execution of lease deed
are void ab initio.
The Sub-Divisional Officer was not authorized to allot the Government land
in favour of Mahanth Govind Das and thereafter transfer the same in favour of
the appellants. The High Court rightly refused to interfere with the orders
passed by the District Magistrate/Collector.
We have carefully considered the rival submissions and perused the entire
material available on record.
We are not required to consider the first contention seriously, for the
simple reason that the appellants did not raise any issue whatsoever about this
aspect of the matter in their writ petition. In their reply to the show-cause
notice, they did not plead and explain as to under what authority the
Sub-Divisional Officer allotted the land in favour of Mahanth Govind Das and
thereafter transferred the same in favour of the appellants. It is only after
the disposal of the writ petition and during the pendency of this appeal, the
appellants addressed a letter to the District Collector requiring him to
furnish information with regard to order passed by him withdrawing the powers
of the Sub- Divisional Officer in the matter of allotment of lands. On
consideration of the entire material available on record, it appears to us,
that what has been withdrawn by the District Collector is obviously with
reference to the power conferred upon the Sub-Divisional Officer to execute the
lease deed for and on behalf of the Governor of the State. No provision of law
is brought to our notice under which the Sub-Divisional Officer could have
allotted the land initially to Mahanth Govind Das and thereafter transferred
the same to the appellants.
The High Court, after an elaborate consideration of the matter, in clear and
categorical terms, found that the Sub- Divisional Officer had no jurisdiction
vested in him to grant/allot the Government land and the power vests only with
the District Collector. The appellants did not plead and establish to the
satisfaction of the Court that the Sub- Divisional Officer is conferred with
the jurisdiction to allot/grant the Government land on the strength of
applications by the interested parties. It is a fundamental principle of law
that a person invoking the extraordinary jurisdiction of the High Court under
Article 226 of the Constitution of India must come with clean hands and must
make a full and complete disclosure of facts to the Court.
Parties are not entitled to choose their own facts to put- forward before
the Court. The foundational facts are required to be pleaded enabling the Court
to scrutinize the nature and content of the right alleged to have been violated
by the authority.
The appellants in this case failed to establish that they have lawfully
secured allotment of land. It is the duty casts upon the appellants to plead
and establish that the order of allotment/grant by the Sub-Divisional Officer
in favour of their predecessor-in-title created any legal right and also
further establish the transfer of land in their favour has been validly made by
the Sub-Divisional Officer. In such view of the matter we are of the opinion,
justice has been done in the matter and the High Court rightly refused to resurrect
or resuscitate the order of the Sub-Divisional Officer which is unenforceable
The "Rules regarding Management of Government property", upon
which strong reliance has been placed by the appellants, do not provide for and
contemplate for making any such transfer of Government land from one person to
another person. The Parganadhikari (Sub- Divisional Officer) has no authority
whatsoever even under the said Rules to make any grant in favour of any
individual or individuals. Rule 5, upon which reliance has been placed reads as
"5. Land will be allotted on lease under Government Grants Act on the
format prescribed by Revenue Board. Parganadhikari is hereby authorized to sign
this lease deed on behalf of His Excellency The Governor. No registration is
required for such deeds."
A plain reading of the Rule clearly reveal that Parganadhikari is merely
authorized to sign the lease deed on behalf of the Governor. The Rules nowhere
confer power upon the Parganadhikari to allot Government land on lease in
favour of any individual.
Yet another aspect of the matter: The Sub-Divisional Officer did not allot
the land in favour of the appellants after canceling the grant made in favour
of Mahanth Govind Das.
Having found that Mahanth Govind Das violated the terms and conditions of
grant, the Sub-Divisional Officer cancelled the grant of lease and imposed
penalty of Rs.2000/- upon Mahanth Govind Das and simultaneously effected
transfer of the land in favour of the appellants. Assuming that the Sub- Divisional
Officer had the authority and jurisdiction to grant lease of the land for
non-agricultural purposes, at the most he could have considered the application
of the appellants on merits in order to decide as to whether they were entitled
to grant of any Government land, but under no circumstances the Sub-Divisional
Officer could have passed orders transferring the land in the names of the
It is true in the show cause notice issued on 5.4.1999 by the District
Magistrate there is no mention about the order dated 9.7.1992 withdrawing the
powers conferred upon the Sub-Divisional Officer in the matter of according
grant of lease of government lands. It is, however, stated that the
Parganadhikari/Sub-Divisional Officer is not authorized to grant land, under
the Government Grant Act, the authority to grant land to certain extent for
residential purposes is vested in the District Magistrate. It is in the final
order of the District Magistrate a mention is made about the proceedings under
which the powers of the Sub- Divisional Magistrate had been withdrawn as early
as on 9.7.1992 much prior to the Sub-Divisional Officer according grant on
20.5.1993. The appellants may be technically right in contending that the order
of the District Collector is based on the grounds which were not specifically
mentioned in the show cause notice issued to the appellants. But at the same
time we are required to bear in mind that in the show cause notice it is
clearly stated that the Parganadhikar/Sub- Divisional Officer is not authorized
to grant land, under the Government Grant Act, the authority to grant land to
certain extent for the residential purposes is vested in the District
Magistrate. It was, therefore, incumbent upon the appellants to plead and
establish that the Sub-Divisional Officer had the authority to grant the
Government land on lease for residential purposes. The High Court while
exercising the jurisdiction under Article 226 of the Constitution of India had
come to the conclusion that the order of the Sub-Divisional Officer upon which
the whole claim of the appellants rests was invalid and improper. The High
Court itself could have set aside such invalid and improper order. Therefore,
in our considered opinion nothing turns on this argument. Even if there was any
technical violation of the rules of natural justice, this is not a fit case for
interference, such interference would result in resurrection of an illegal,
nay, void order.
In Venkateswara Rao v. Government of A.P. , a Primary Health Centre was
formerly inaugurated at a particular village subject to certain conditions.
Since those conditions are not satisfied, the Panchayat Samithi resolved to
shift it to another village. The Government, in exercise of its review
jurisdiction, interfered with the resolution so passed by the Panchayat Samithi
without providing any opportunity whatsoever to the Panchayat Samithi. The
government's order was challenged in a proceeding under Article 226 of the
Constitution of India. The A.P. High Court held, the order passed by the
Government on the review to be bad, but did not interfere on merits. The
Supreme Court, while confirming the order of the High Court observed that:
"if the High Court had quashed the said order, it would have restored
an illegal order; it would have given the Health Centre to a village, contrary
to the valid resolutions passed by the Panchayat Samithi."
The Supreme Court opined that the High Court was right in refusing to
exercise its extraordinary discretionary power under Article 226 of the Constitution
In M.C.Mehta v.Union of India , this Court, relying upon Venkateshwara Rao
(1 supra) observed;
"the above case is clear authority for the proposition that it is not
always necessary for the Court to strike down an order merely because the order
has been passed against the petitioner in breach of natural justice. The Court
can under Article 32 of Article 226 refuse to exercise its discretion of
striking down the order if such striking down will result in restoration of
another order passed earlier in favour of the petitioner and against the
opposite party, in violation of principles of natural justice or is otherwise
not in accordance with law."
In our view, on the admitted and indisputable facts set out above, any
interference with the impugned order of the District Collector would result in
restoration of orders passed earlier in favour of the appellants which are
otherwise not in accordance with law.
For all these reasons, we do not find any merit in the appeals. The appeals
are accordingly dismissed. We make no order as to costs.